J. S47033/17

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

IN RE: EVA G. SELLERS :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

:

APPEAL OF: ELIZABETH S. FISCHER : No. 306 EDA 2017

Appeal from the Order Entered December 7, 2016,

in the Court of Common Pleas of Montgomery County

Orphans’ Court Division at No. 2015-X-3184 (Principal)

IN RE: EVA G. SELLERS :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

:

APPEAL OF: ELIZABETH S. FISCHER : No. 329 EDA 2017

Appeal from the Order Entered December 7, 2016,

in the Court of Common Pleas of Montgomery County

Orphans’ Court Division at No. 2016-X-2320

BEFORE: LAZARUS, J., MOULTON, J., AND FORD ELLIOTT, P.J.E. 

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED SEPTEMBER 19, 2017

Elizabeth S. Fischer (“Fischer”) appeals the orders of the Court of 

Common Pleas of Montgomery County that denied her motion for partial 

summary judgment at No. 2015-X-3184 and granted the motion for partial 

summary judgment filed by Cristy Sellers (“C. Sellers”), administratrix of the 

estate of Eric S. Sellers at No. 2016-X-2320 and stated that Fischer had no 

authority to create an irrevocable Medicaid Income-Only Trust and had no 

authority to transfer property to a trust not in existence on the date the 
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power of attorney was signed. As a result, the trial court deemed the trust 

invalid and void and ordered and decreed that the transfer to the trust of the 

house located at 570 King Road, Limerick, Pennsylvania (“Property”), was 

invalid. The trial court further ordered that the Property must be included as 

an asset on any amended account filed by Fischer as agent under the power 

of attorney of Eva Geiger Sellers (“Mother”). After careful review, we affirm 

in part and quash in part.

I. Factual Background.

The record reflects that Mother had three children: Fischer, 

Steven Sellers, and Eric Sellers (“Sellers”), the deceased husband of 

C. Sellers. Mother named Fischer as the agent under a Durable Power of 

Attorney dated November 4, 2009. Under the power of attorney with 

respect to real property, Fischer was given the power to manage, sell, or 

transfer any real property that Mother owned at the time or would later 

acquire. Fischer also had the power to execute deeds, mortgages, releases, 

satisfactions, and other instruments relating to real property and interests in 

real property that she owned or would later acquire. 

As Mother’s health worsened, she moved to a nursing home/assisted 

living facility on June 28, 2010. Fischer, in agreement with her brothers, 

consulted an elder law attorney who recommended the creation of an 

Irrevocable Medicaid Trust (“Trust”). Fischer, as agent and attorney-in-fact 
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of Mother, created the Trust on July 12, 2010 and acted as trustee. The 

Property was placed in the Trust and valued at $254,250.

On December 20, 2010, the Trust sold the Property to Fischer’s 

daughter, Devon Ann Hepburn (“Hepburn”), under an installment land 

contract. The contract was structured to include an $80,000 deposit, 

96 payments of $931.82, and the balance due after Hepburn turned 

30 years old. The Property was the only asset in the Trust. 

Mother died on November 28, 2011. Sellers died on February 20, 

2012. His widow, C. Sellers, was named the administratrix of Sellers’s 

estate. 

II. Power of Attorney.

On September 15, 2015, C. Sellers filed a petition to show cause why 

an account should not be filed with respect to Fischer’s administration as 

agent under the durable power of attorney from November 4, 2009 through 

the date of Mother’s death on November 28, 2011. On September 18, 2015, 

the trial court awarded a citation returnable on October 19, 2015 for Fischer 

and successor Steven Sellers to show cause why they should not file an 

account.

On December 18, 2015, following a telephone conference, Fischer was 

ordered to file an account of the administration of her agency from 

November 4, 2009, through November 28, 2011, by December 30, 2015. 

The accounting stated an opening balance of $93.52, income of 
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$203,453.26, expenses of $202,695.39, and a closing balance of $1,251.39. 

The biggest source of income was $101,000 from the Trust as payments 

received from Hepburn. The two biggest expenses were payments of 

$82,760.17 to Wells Fargo Mortgage and $81,142.15 for payments to 

long-term care facilities.

On January 28, 2016, the estate of Eric S. Sellers, as represented by 

C. Sellers, objected to the accounting on the basis that Fischer did not have 

authority to create the Trust or transfer the Property to it. C. Sellers also 

objected to the lack of personal property listed, the lack of itemized amounts

and payment dates for income and expenses, the accuracy of the long-term 

care expenditures, and to the Property-related expenses as some expenses 

would be post-transfer of the Property. C. Sellers also objected to the 

payment of $3,000 to Joseph Masiuk, an elder care attorney, as she believed 

that the payment was for the preparation of the Trust which she did not 

believe was authorized by the power of attorney. She also objected to the 

inclusion of home sale preparation expenses as Fischer did not sell the 

Property as agent but transferred it to the Trust. C. Sellers also objected in 

general with Fischer’s agency and alleged that she commingled funds 

between her duties as agent under the power of attorney and as trustee 

under the Trust. She also alleged that Mother lacked capacity to execute the 

power of attorney.
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By order dated May 5, 2016, the trial court ordered Fischer to file an 

amended account of her administration of agency on or before June 1, 2016 

with specific itemization of each receipt and expense. The trial court also 

ordered Fischer to file an account in her capacity as trustee of the trust 

during the agency period to which real estate of the principal was 

transferred to the trust. The trial court later extended the due date for the 

accounts.

On June 28, 2016, Fischer filed the amended accounting for her 

agency under the power of attorney. The opening balance was $3,392.59, 

income was $220,602.82. Expenses totaled $221,752.93. The final balance 

at time of Mother’s death was $1,251.39. 

On July 29, 2016, C. Sellers as representative of Eric S. Sellers’s 

estate objected to the amended power of attorney account. C. Sellers 

reiterated her objections concerning the Property and the personal property 

and objected to the bundling of some income and expense items. She also 

objected to transactions paid after the death of Mother and to the accuracy 

of the accounting. She again objected to expenses for the Property and the 

validity of the power of attorney itself.

On August 16, 2016, Fischer filed an amended power of attorney 

accounting. The totals were the same, though some categories were broken 

down in more detail. On that same date, Fischer filed a petition for 

adjudication/statement of proposed distribution.
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On October 28, 2016, Fischer answered C. Sellers’s objections and 

sought dismissal of all of the objections. Fischer asserted the affirmative 

defenses of the statute of limitations and the doctrine of equitable estoppel.

On October 31, 2016, Fischer moved for partial summary judgment 

and the dismissal of C. Sellers’s objections. Fischer alleged that C. Sellers 

knew of the transfer of the Property to Hepburn and the formation of the 

Trust as early as October 27, 2010, such that the objections were not raised 

in a timely fashion and were barred by the statute of limitations and the 

doctrine of laches. Similarly, C. Sellers demonstrated that she knew of the 

Trust in 2012, which Fischer believed was another reason why the objections 

were time-barred. She also asserted that the objections were impermissible 

under the doctrine of equitable estoppel because the Trust distributed 

significant funds beginning in 2013 and Hepburn made significant 

improvements to the Property with the knowledge of and without objection 

by C. Sellers. On October 31, 2016, Fischer submitted an affidavit in which 

she averred that her brothers agreed to the creation of the Trust, and that 

she was advised by counsel that the power of attorney authorized the 

creation of the Trust. She further averred that her attorney advised her to 

sell the Property under a land installment contract. She also averred that 

after Sellers’s death, she visited his widow, C. Sellers, and informed her in 

February 2012 of the Trust and the sale of the Property under the Land 

Installment Agreement.
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C. Sellers replied and denied the material allegations. In new matter, 

she asserted that she did not know of the existence of a power of attorney 

until November 9, 2014, when she found a copy of it on the Montgomery 

County Recorder of Deeds website. C. Sellers asserted that Fischer’s failure 

to raise any affirmative defenses in a timely answer to the petition for 

account should result in waiver of those defenses.

On December 7, 2016, the trial court denied Fischer’s motion for 

summary judgment. On December 19, 2016, Fischer moved for 

reconsideration. On December 21, 2016, the trial court denied the motion 

for reconsideration. 

III. Trust Accounting.

On June 29, 2016, Fischer filed a trust accounting for the Trust which 

set forth the value of the Property at $254,250. Distributions to Mother of 

$93,045.48 were made before her death. A distribution of $12,345.45 was 

made to Mother’s estate. Fischer, Steven Sellers, and Eric Sellers’s children 

each received $12,136.17. The Trust received payments from September 

2010 to June 2016 of $153,386.46 from Hepburn.

On July 29, 2016, C. Sellers, in her capacity as representative of the 

estate of Eric Sellers, objected to the accounting for the Trust. C. Sellers 

objected to the validity of the Trust itself as she believed that Fischer did not 

have authority under the power of attorney to create it. Among C. Sellers’ 

other objections were that the Trust was contrary to Mother’s estate 
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planning wishes and distributions to Mother during her lifetime constituted 

both income and principal while Mother was only entitled to income. 

C. Sellers also objected to the accuracy of the accounting and objected to 

Fischer’s failure to conform to the duties of a trustee. C. Sellers asked the 

trial court to uphold her objections and to surcharge Fischer for C. Sellers’s 

fees and costs caused by Fischer’s breaches of her fiduciary duties.

On August 16, 2016, Fischer filed a petition for adjudication/statement 

of proposed distribution of the Trust. 

On October 29, 2016, the estate of Eric S. Sellers moved for partial 

summary judgment and alleged the following:

8. The POA [power of attorney] did not authorize 

the Agent to create a trust. POA Section III, 

Powers of Attorney-In-Fact on POA page 3 

enumerates specific authority given to the 

agent. In that section, page 5 ESTATE AND 

TRUST TRANSACTIONS, the Agent is only 

empowered “To act for me in all matters that 

affect a trust, probate estate, guardianship, 

conservatorship, escrow, custodianship or 

other fund for which I am now, claim to be or 

later become entitled, as a beneficiary, to a 

share or payment,” or “Transfer any of my 

property to a living trust that I created as a 

grantor before this Power of attorney was 

signed.”

9. The Trust is invalid as its creation was not 

authorized by the POA.

10. POA Section III, REAL ESTATE 

TRANSACTIONS, on page 3, granted the Agent 

power to transfer real estate on behalf of the 

Principal, but as per overall terms of the POA, 

only for the benefit of the Principal and not for 
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the benefit of third parties or furtherance of 

any estate planning goals of the Principal or 

beneficiaries.

11. POA Paragraph 6, No Personal Benefit, on 

page 7, states “Except as specifically provided 

for in this document, my attorney-in-fact is 

prohibited from personally benefitting from any 

transaction engaged in or on my behalf. . . .”

12. On December 20, 2010 the Trustee sold the 

House to her daughter under a Land 

Installment Contract, which gave her daughter 

eight years to pay the full purchase price.

13. Subsequent to the sale, the Trustee, in 

violation of Trust terms, distributed both 

income and principal received under the Land 

Installment Contract to Principal, the total 

amount of which was $93,045.48 from 

September 2010 to November 2011, the 

month of Principal’s death. This total is stated 

in an account filed by the Trustee with this 

Honorable Court on June 29, 2016 . . . . The 

total appears on page 4, “Distributions to 

Eva Sellers prior to her death.”

14. At the time of her death, $212,879.43 was still 

owing on the Land Installment Contract, the 

majority of which was principal due the Trust. 

This total is calculated by deducting the 

$93,045.48 from the “Total Payments to Trust 

under Installment Contract” stated by the 

Trustee on account page 5 as $305,924.91.

15. The Principal did not empower the Agent to sell 

her house and give the equity to a trust, or 

otherwise in any way encumber the equity 

therein or use that equity for the benefit of 

anyone other than the Principal.

16. The Principal during her lifetime may have 

desired to live in the House, or the full House 
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equity could have been needed to provide for 

her needs.

17. The Agent’s transfer of the House to an 

Irrevocable Trust was a breach of her fiduciary 

duty to the Principal, as the House transfer 

was done solely to spend down the Principal’s 

assets for estate planning purposes, and only 

yielded a benefit to the Principal’s 

beneficiaries, not to the Principal.

18. Per paragraph 6 of the POA, the transfer of the 

House violated the terms of the POA as it was 

done to yield a benefit to the Agent, and such 

benefits are expressly prohibited.

19. The unauthorized payment by the Trustee of 

some of the Trust corpus to the Principal did 

not relieve the agent of her duty to use the 

entire asset value of the House for the benefit 

of the Principal, and to keep it within her 

control during her lifetime.

[20.1]The transfer of House to the Trust was 

therefore invalid, as there was never a validly 

created Trust to receive the House. It was also 

invalid in that the POA did not empower the 

Agent to perform any actions not for the 

benefit of the Principal, and the transfer of 

House to an irrevocable trust where only a 

partial distribution of the House equity value 

was distributed to the Principal for her benefit 

constituted a breach of the agent’s fiduciary 

duty to the Principal.

Estate of Eric S. Sellers’s motion for partial summary judgment, 10/29/16 at 

2-4, ¶¶ 8-19.

 

1 The motion lists two number “19” paragraphs in the motion rather than 19 

and 20.
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C. Sellers, on behalf of the estate of Eric S. Sellers, sought an order 

that declared the Trust invalid, the transfer of the Property invalid, and listed 

the Property as an asset on any amended accounts filed by Fischer under 

the Power of Attorney. Fischer denied the material allegations in the motion.

On December 7, 2016, the trial court granted the motion and 

determined that Fischer had no authority to create the Trust and no 

authority to transfer the Property to a trust not in existence on the date the 

power of attorney was signed. The trial court further ordered that the 

Property must be included as an asset in any amended account filed by 

Fischer as agent under the power of attorney. The trial court deemed the 

order final pursuant to Pa.R.A.P. 342(2).

On December 19, 2016, Fischer moved for reconsideration. The trial 

court denied the motion on December 21, 2016. By this point, the two 

separate proceedings were consolidated. On January 5, 2017, Fischer filed a 

notice of appeal to this court.

IV. Appeal.

On appeal, Fischer raises the following issues for this court’s review: 

“Did the [t]rial [c]ourt err when it granted [C. Sellers’s] Motion for Summary 

Judgment on the scope of the power of attorney? Did the [t]rial [c]ourt err 

when it denied [Fischer’s] Motion for Summary Judgment on [sic] based on 

the statute of limitations, doctrine of laches, and estoppel?” (Fischer’s brief 

at 2.)
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A. C. Sellers’s Motion for Summary Judgment.

Initially, Fischer contends that the evidence established a genuine 

issue of material fact with respect to the scope of the power of attorney such 

that the trial court erred when it granted C. Sellers’s motion for summary 

judgment.

This court’s review of a decision of an Orphans’ Court is as follows:

Our standard of review of the findings of 

an [O]rphans’ [C]ourt is deferential.

When reviewing a decree 

entered by the Orphans’ 

Court, this Court must 

determine whether the 

record is free from legal error 

and the court’s factual 

findings are supported by the 

evidence. Because the 

Orphans’ Court sits as the 

fact-finder, it determines the 

credibility of the witnesses 

and, on review, we will not 

reverse its credibility 

determinations absent an 

abuse of that discretion.

However, we are not constrained to give 

the same deference to any resulting legal 

conclusions.

In re Estate of Harrison, 745 A.2d 676, 678-679,

appeal denied, 758 A.2d 1200 (Pa. 2000). 

(internal citations and quotation marks omitted). 

“[T]he Orphans’ [C]ourt decision will not be reversed 

unless there has been an abuse of discretion or a 

fundamental error in applying the correct principles 

of law.” In re Estate of Luongo, 823 A.2d 942, 

951 (Pa.Super. 2003), appeal denied, 847 A.2d 

1287 (Pa. 2003).
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In re Estate of Whitley, 50 A.3d 203, 206-207 (Pa.Super. 2012) (internal 

citations and quotation marks omitted).

This court reviews a grant of summary judgment under the following 

well-settled standards:

Pennsylvania law provides that summary 

judgment may be granted only in those 

cases in which the record clearly shows 

that no genuine issues of material fact 

exist and that the moving party is 

entitled to judgment as a matter of law. 

The moving party has the burden of 

proving that no genuine issues of 

material fact exist. In determining 

whether to grant summary judgment, 

the trial court must view the record in 

the light most favorable to the nonmoving party and must resolve all doubts 

as to the existence of a genuine issue of 

material fact against the moving party. 

Thus, summary judgment is proper only 

when the uncontroverted allegations in 

the pleadings, depositions, answers to 

interrogatories, admissions of record, 

and submitted affidavits demonstrate 

that no genuine issue of material fact 

exists, and that the moving party is 

entitled to judgment as a matter of law. 

In sum, only when the facts are so clear 

that reasonable minds cannot differ, may 

a trial court properly enter summary 

judgment.

[O]n appeal from a grant of summary 

judgment, we must examine the record 

in a light most favorable to the 

non-moving party. With regard to 

questions of law, an appellate court’s 

scope of review is plenary. The Superior 

Court will reverse a grant of summary 
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judgment only if the trial court has 

committed an error of law or abused its 

discretion. Judicial discretion requires 

action in conformity with law based on 

the facts and circumstances before the 

trial court after hearing and 

consideration.

Gutteridge v. A.P. Green Services, Inc., 804 A.2d 

650, 651 (Pa.Super. 2002).

Wright v. Allied Signal, Inc., 963 A.2d 511, 514 (Pa.Super. 2008) 

(citation omitted).

Specifically, Fischer argues that the terms of the power of attorney 

were ambiguous and the trial court ignored the facts that she and her two 

brothers were in agreement that it was proper to create the Trust and that 

they acted on the advice of an elder care attorney that supported their 

authority to create the Trust. Fischer argues that this court should not defer 

to the trial court’s determination that the plain language in the power of 

attorney did not permit the creation of the Trust.

The trial court determined that the Power of Attorney contained the 

following pertinent provisions which did not allow Fischer to create the Trust:

 To act for me in all matters that affect a trust, 

probate estate, guardianship, conservatorship, 

escrow, custodianship or other fund from which 

I am now, claim to be or later become entitled, 

as a beneficiary, to a share or payment.

 Transfer any of my property to [a] living trust 

that I created as a grantor before this Power of 

Attorney was signed.

Trial court opinion, 1/26/17 at 2 (emphasis supplied by the trial court).
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The trial court further reasoned that Fischer did not have authority to 

create the Trust for the benefit of Mother. The trial court added:

The appellant’s averments -- that the trust was 

created “with the agreement of her brothers” and 

with the advice of an elder law attorney -- cannot be 

considered facts not in dispute at this stage of the 

proceedings. Furthermore, even if shown to be true, 

these allegations could not override the specific 

provisions of the power of attorney and are not 

material to the question of the interpretation of the 

authority of the agent under the power of attorney. 

In this case, the Court determined the provisions of 

the power of attorney are explicit, clear and not 

ambiguous. Consequently, [Fischer] did not have 

the authority under the power of attorney to create a 

trust and did not have the authority to transfer her 

mother’s home into the trust.

Id. at 2-3.

A review of the Power of Attorney confirms the determination of the 

trial court. Under the power of attorney, Fischer did not have the authority 

to create the Trust and place the Property into it.

Fischer next contends that her actions were authorized under the 

current statutes and case law of the Commonwealth because in Pennsylvania 

an agent acting under a general power of attorney has considerably broad 

authority under 20 Pa.C.S.A. § 5601. However, Fischer admits that while 

agents acting pursuant to a valid power of attorney are permitted to exercise 

the broad powers granted to them under the statute, the specific power of 

attorney document limits this authority. Here, the power of attorney did not 

give Fischer the authority to create the Trust. 
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B. Fischer’s Motion for Summary Judgment.

With respect to the denial of her motion for summary judgment, 

Fischer asserts that C. Sellers did not object to the sale of the Property to 

Hepburn, the creation of the Trust, the improvements to the Property made 

by Hepburn, or the receipt of payments from the Trust. 

Before addressing the merits of Fischer’s argument, this court must

address C. Sellers’s contention that the order that Fischer appeals is not 

appealable because it is not a final order.

Rule 342 of the Pennsylvania Rules of Appellate Procedure, entitled 

Appealable Orphans’ Court Orders, provides in pertinent part:

(a) General rule. An appeal may be taken as of 

right from the following orders of the Orphans’ 

Court Division:

(1) An order confirming an account, or 

authorizing or directing a 

distribution from an estate or trust;

(2) An order determining the validity 

of a will or trust;

(3) An order interpreting a will or a 

document that forms the basis of a 

claim against an estate or trust;

(4) An order interpreting, modifying, 

reforming or terminating a trust;

(5) An order determining the status of 

fiduciaries, beneficiaries, or 

creditors in an estate, trust, or 

guardianship;
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(6) An order determining an interest in 

real or personal property;

(7) An order issued after an 

inheritance tax appeal has been 

taken to the Orphans’ Court 

pursuant to either 72 Pa.C.S. 

§ 9186(a)(3) or 72 Pa.C.S. § 9188, 

or after the Orphans’ Court has 

made a determination of the issue 

protested after the record has been 

removed from the Department of 

Revenue pursuant to 72 Pa.C.S. 

§ 9188(a); or 

(8) An order otherwise appealable as 

provided by Chapter 3 of these 

rules.

Pa.R.A.P. 342(a).

C. Sellers argues that none of these provisions applies to the matter at 

hand. To clarify, Fischer is appealing the denial of her motion for partial 

summary judgment after C. Sellers filed objections to the accounting for 

Fischer’s actions under the power of attorney. Fischer argues that 

Pa.R.A.P. 342(a)(3-4) apply here. However, the denial of Fischer’s motion 

for partial summary judgment is not an order interpreting a will or a 

document that forms the basis of a claim against an estate or trust. While 

the order declaring the Trust invalid and granting the motion for summary 

judgment of C. Sellers may have qualified, this order does not. Similarly, 

this order denying Fischer’s motion for partial summary judgment does not 

interpret, modify, reform, or terminate a trust. At this point in the 

proceedings, this order is unappealable. 
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Affirmed in part; quashed in part. Affirm the order that granted 

C. Sellers’s motion for partial summary judgment, and quash Fischer’s 

appeal of the denial of her motion for partial summary judgment.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/19/2017